5.  The applicant was born in 1965 and lives in Lublin. He was the owner of a pawnshop.
6.  On 11 June 2001 the applicant was arrested on suspicion of large-scale fraud committed while acting as a leader of an organised criminal group. He was further suspected of extortion and threatening witnesses. The investigation was conducted by the Department of Organised Crime of the Lublin Regional Prosecutor’s Office.
7.  On 12 June 2001 the Lublin District Court remanded the applicant in detention, relying on the reasonable suspicion that he had committed the offences in question. It invoked the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings by attempting to bring pressure to bear on other members of the criminal group. The applicant appealed. On 5 July 2001 the Lublin Regional Court dismissed the appeal. It noted that the applicant’s arguments that the allegations made against him had been false would be examined by the court determining the charges. It also found that the risk of obstruction of proceedings was supported by the charge of threatening witnesses.
8.  On 27 November 2001 the Lublin Regional Prosecutor charged the applicant with additional offences, namely aggravated fraud, attempted fraud, unlawful possession of a weapon (a gas gun), unlawful possession of amphetamine and preparing the forgery of certain documents.
9.  In the course of the investigation, the applicant’s detention was extended by the Lublin District Court several times. In its decisions, the court relied on the likelihood that a severe prison sentence would be imposed on him. It also underlined the risk that the applicant would obstruct the proceedings. That risk was exemplified by the nature of several of the charges against him (extortion and threatening of witnesses) indicating that the applicant could attempt to exert pressure on other persons. Further, the court referred to the need to continue the process of obtaining evidence. The applicant appealed unsuccessfully against the decisions.
10.  On 8 July 2002 the applicant was additionally charged with corrupting a police officer.
11.  On 5 December 2002 the prosecution filed a bill of indictment with the Lublin District Court. The applicant was charged with the following offences: 1) leading an organised criminal group engaged in fraud, 2) fraud to the value of 65,016 PLN to the detriment of numerous companies, 3) aggravated fraud to the value of PLN 1,146,658.6 to the detriment of coal mines, 4) attempted fraud to the value of 194,287.44 to the detriment of an IT company, 5) forgery of documents, 6) fraud, 7) extortion, 8) threatening a witness, 9) unlawful possession of a gas gun, 10) possession of amphetamines, 11) corrupting a police officer and 12) putting into circulation forged bank notes. There were eleven other co-defendants in the case.
12.  The detention of the applicant was subsequently extended by the Lublin District Court and the Lublin Court of Appeal (Sąd Apelacyjny) on 9 December 2002 (until 14 May 2003), 21 May 2003 (until 11 October 2003), 1 August 2003 (until 11 February 2004), 4 February 2004 (until 11 November 2004), 8 September 2004 (until 11 December 2004), 9 December 2004 (until 11 April 2005), 6 April 2005 (until 11 September 2005), 7 September 2005 (until 11 January 2006) and 5 January 2006 (until 11 September 2006). The courts repeated the grounds given in the previous decisions and additionally invoked the complexity of the case. In its decision of 28 May 2002 the Court of Appeal noted that the organised nature of the criminal activities substantiated the risk that the applicant would interfere with witnesses.
13.  The applicant appealed unsuccessfully against several of the decisions extending his detention. In his appeals he relied on the unreasonable length of the detention and on the deterioration of his ties with his family.
14.  On 20 January 2006 the Lublin District Court split the case into eight separate sets of proceedings.
15.  On 6 February 2006 the Lublin District Court discontinued the proceedings against the applicant with regard to the charge of leading an organised group engaged in fraud between May 1997 and the beginning of 1998. It held that the act imputed to the applicant did not constitute a crime under the provisions of the old Criminal Code which were applicable at the relevant time. That decision was upheld on appeal.
16.  On 14 March 2006 the applicant was released.
17.  The Government submitted that between 19 July 2004 and 14 April 2005 as well as between 15 July and 3 September 2005 the applicant had been serving a prison term imposed on him in another set of criminal proceedings.
18.  On 13 April 2006 the Lublin District Court convicted the applicant of putting into circulation forged bank notes and sentenced him to eighteen months’ imprisonment and a fine. The judgment was upheld on appeal.
19.  On 5 May 2006 the Lublin District Court convicted the applicant of unlawful possession of a gas gun and ammunition and sentenced him to seven months’ imprisonment. The judgment was upheld on appeal.
20.  On 25 May 2006 the Lublin District Court convicted the applicant of unlawful possession of 0.29 grams of amphetamine and sentenced him to a fine. The judgment was upheld on appeal.
21.  On 8 March 2007 the Lublin District Court convicted the applicant of aggravated fraud to the detriment of several coal mines and sentenced him to thirty months’ imprisonment and a fine. The judgment was upheld on appeal.
22.  On 25 October 2007 the Lublin District Court acquitted the applicant of the charge of corrupting police officer W.S., the head of the economic crime department of the Lublin Police. It further acquitted W.S. of the charge of accepting bribes from the applicant. It found that the charges had been essentially based on the statements of two witnesses, P.K. and R.P. The evidence of the first witness was held to be unreliable, contradictory and incompatible with other evidence in the case. The first witness, P.K., stated that in the course of the investigation he had been urged by prosecutors to give evidence against the applicant and the police officer; however the trial court did not consider those assertions credible. The evidence of the second witness was held to be equally unreliable. The trial court noted that the second witness had first made statements incriminating the applicant and the police officer which he had retracted following his conviction in respect of which he received a reduced sentence on account of his co-operation with the prosecution.
23.  The prosecutor’s appeal against the first-instance judgment was dismissed as manifestly ill-founded. The Lublin Regional Court observed in its judgment of 17 June 2008 that in the course of the investigation the prosecutor had grossly violated the principle of objective assessment of evidence. It went on to say that the prosecutor had uncritically accepted the evidence of P.K. and R.P. – who had been involved in criminal activities ‑and had failed to verify it. Moreover, such an unfairly conducted investigation, which the appellate court described as “appalling”, was used to ruin the career of a high-ranking police officer. The appellate court concurred with the trial court that the evidence of those two witnesses had to be excluded as entirely unreliable. It further noted that both witnesses had continued to incriminate the police officer until they had been convicted and received reduced sentences.
24.  On 21 May 2008 the Lublin District Court convicted the applicant of attempted aggravated fraud to the detriment of an IT company, fraud and preparation of forgery and sentenced him to thirty months’ imprisonment and a fine. On 29 April 2009 the Lublin Regional Court quashed the first-instance judgment in respect of the applicant and remitted the case. On 16 March 2010 the Lublin Regional Court, which in the meantime had become competent to examine the case, acquitted the applicant of the charges. It found that they had been based on unreliable allegations made by the same two witnesses, P.K. and R.P. The court noted that P.K. had deliberately made false allegations against the applicant. The prosecutor’s appeal was dismissed on appeal.
25.  The charges of extortion and of threatening witnesses were examined by the Lublin-Zachód District Court. On 24 March 2011 the court gave judgment. It reclassified the charges respectively to unlawful violence (Article 191 § 2 of the CC) and unlawful threats (Article 190 § 1 of the CC) and found the applicant guilty. The court sentenced the applicant to a suspended term of fifteen months’ imprisonment and a fine. The applicant and the prosecutor appealed. On 26 October 2001 the Lublin Regional Court quashed the first-instance judgment. It discontinued the proceedings against the applicant, finding that the social danger of the first act imputed to the applicant (unlawful violence) was negligible and that the second charge had become time-barred.
26.  On 11 April 2011 the Lublin-Zachód District Court acquitted the applicant of the charge of fraud to the value of 65.016 PLN to the detriment of various companies. The judgment became final on 24 August 2011.
27.  On 12 June 2001 the applicant was detained at the Lublin Remand Centre. Initially, he was considered to require increased protection on account of the charges against him but was not formally classified as a “dangerous detainee”.
28.  On 26 October 2001 the applicant was transferred to the Radom Remand Centre.
29.  On 31 January 2002 the Organised Crime Department of the Lublin Regional Prosecutor’s Office requested the Radom Remand Centre (Areszt Śledczy) to classify the applicant as a dangerous detainee. The prosecutor stated that the applicant had been charged with leading a criminal gang and unlawful possession of a gun. Furthermore, there was a risk that he would attempt to corrupt prison or administration of justice officers in order to make unlawful contact with the outside world. There was also a risk that he would attempt to escape.
30.  On 1 February 2002 the Radom Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee”. It relied on the arguments put forward by the Prosecutor’s Office. The Head of the Security at the Remand Centre ordered that the applicant wear shackles on his hands and feet (kajdany na ręce i nogi) when escorted outside the remand centre and if placed in a solitary cell he should have a solitary walk.
31.  The applicant appealed. He argued, inter alia, that the legal classification of the charge of leading a criminal group engaged in fraud had been incorrect and could not justify the imposition of the regime. He maintained that the acts imputed to him could not be considered as acting in an organised group under the provisions of the old Criminal Code which had been applicable. His appeal was dismissed by the Radom Regional Court on 26 March 2002. The court noted that the applicant had been charged with a number of offences committed in an organised group and that, for this reason, he was considered as a person representing a serious social danger or serious danger to the security of the Remand Centre. Accordingly, the imposition of the dangerous detainee regime on him was justified under §§ 62(2) and 64(1) of the Ordinance of the Minister of Justice of 12 August 1998 on the Rules on the Execution of Detention on Remand (“the 1998 Ordinance”; see paragraphs 73-74 below under Relevant domestic law).
32.  From 1 February 2002, when the applicant was placed in a cell for dangerous detainees, he remained under increased supervision. He was subjected to a body search, including an inspection of his anus every time he left and entered the cell. At the same time his cell was searched.
33.  The applicant was allowed to spend one hour per day in an outdoor yard but was segregated from other detainees.
34.  On 29 April and 25 July 2002 the Radom Remand Centre’s Penitentiary Commission reviewed and upheld its decision classifying the applicant as a “dangerous detainee”. The applicant’s appeal against the first of those decisions was dismissed. His appeal against the second of those decisions was left without examination as having been submitted outside the time-limit.
35.  It transpires from a letter dated 25 February 2002 of the Deputy Governor of the Radom Remand Centre to the Radom Regional Court ‑ Penitentiary Division that in that establishment the applicant was placed in a solitary cell in a special high-security ward, as were all dangerous detainees held there. The psychologist who consulted the applicant did not find any contraindications against the applicant’s placement in a solitary cell.
36.  In April 2002 the applicant complained to the Warsaw Regional Inspector of Prison Services about his treatment by the administration of the Radom Remand Centre. In reply, he was informed that his complaint was unfounded. As a remand prisoner classified as a “dangerous detainee” he was being treated in accordance with the rules laid down in § 64 of the 1998 Ordinance. This provision imposed, inter alia, the obligation to carry out a personal check every time a detainee was leaving or entering his cell. Further, he was informed that he was twice seen by a psychologist and was received by the Governor of the Remand Centre. He could benefit from certain activities in his solitary cell, such as listening to the prison radio, reading books and playing board games.
37.  On 16 October 2002 the applicant was transferred to Chełm Prison.
38.  On 24 October 2002 the Penitentiary Commission of Chełm Prison extended the application of the “dangerous detainee” regime for another three months, indicating that the original grounds justifying its imposition remained valid. It noted that the risk of corrupting prison or judicial personnel indicated that the applicant was seriously lacking moral character. The Commission also considered that the short duration of the applicant’s stay in the establishment had not permitted it to assess properly his personal circumstances. The applicant appealed, alleging that the decision had been unlawful. He requested the court to find that in his case there were particular circumstances militating against the continuation of the “dangerous detainee” regime referred to in § 62(2) of the 1998 Ordinance.
39.  On 3 December 2002 the Lublin Regional Court quashed the decision of 24 October 2002 and remitted the case. It found that the Commission’s findings concerning the risk of corrupting officials and the applicant’s lack of moral character had not met the conditions stipulated in § 62(2) of the 1998 Ordinance. Further, the Commission had failed to hear the applicant. It appears that despite the court’s decision quashing the Penitentiary Commission’s decision on classification of the applicant as a “dangerous detainee” he continued to be held in a cell for dangerous detainees.
40.  On 12 December 2002 the Penitentiary Commission decided to continue the application of the regime for another three months. In addition to the reasons previously given, it referred to the letter of the Lublin Regional Prosecutor of 11 December 2002, which pointed out that the applicant had been charged with threatening witnesses. The prosecutor also noted that in the course of the investigation the authorities had on a few occasions seized unlawful communications sent by the applicant. In the Commission’s view, those facts indicated that the personal circumstances and the behaviour of the applicant constituted a serious social danger and a danger to the security of the prison.
41.  The applicant contested the Commission’s decision as unlawful. He argued that he had been the only member of the group who remained in detention and that the charges of fraud had not concerned dangerous crimes. Furthermore, he had been charged with unlawful possession of a gas gun but it had not been alleged that he had used it. Furthermore, he objected to the fact that the prosecutor had made submissions to the Penitentiary Commission without a legal basis for doing so since after the filing of the bill of indictment he had remained at the disposal of the trial court and not of the prosecutor.
42.  On 3 February 2003 the Lublin Regional Court upheld the Commission’s decision.
43.  The applicant complained that in Chełm Prison he was deprived of the possibility to participate in cultural and educational activities. On 14 February 2003 the Governor of the Prison informed him that the prison’s common room was not equipped with adequate security systems and therefore prisoners classified as “dangerous” could not make use of it. However, the applicant had the possibility of reading in his cell books and newspapers provided by the prison library. Further, he could listen to programmes broadcast by the prison radio and watch television.
44.  On 12 March 2003 the Penitentiary Commission extended the application of the regime for another three months, relying on the same grounds as previously. The applicant appealed.
45.  On 29 April 2003 the Lublin Regional Court – Penitentiary Division held a hearing at Chełm Prison. The applicant submitted that the Commission’s decision had been unlawful and the reasons given for it had been too general. The charges against him did not justify the continuation of the regime. Further, he submitted that he had not been disciplined in prison and his only fault was sending unlawful correspondence. The court adjourned the examination of the applicant’s appeal. The matter was further adjourned on 3 June 2003. On 18 June 2003 the court dismissed the applicant’s appeal. It held that the decision under appeal was not contrary to the law, namely § 62(2) of the 1998 Ordinance, since the applicant had been charged with the commission of a crime in an organised group. The court further found no special circumstances militating against the imposition of the regime.
It transpires from the transcript of the hearing before the Regional Court that the applicant was handcuffed at the session of the Penitentiary Commission on 12 March 2003.
46.  On 9 June 2003 the applicant was transferred to the Lublin Remand Centre. On 12 June 2003 the Penitentiary Commission of that establishment prolonged the applicant’s status for a further three months. It found that the applicant continued to present a threat to the security of the Remand Centre and invoked the risk that he might abscond.
47.  The applicant appealed. He submitted that when issuing its decision the Penitentiary Commission of the Lublin Remand Centre had not had at its disposal his personal file. On 15 July 2003 the Lublin Regional Court upheld the Commission’s decision as it fulfilled the conditions specified in the 1998 Ordinance. It had regard to the charges against the applicant (leading of an organised criminal group, threatening witness, corrupting public officials) and the fact that the applicant had attempted to communicate unlawfully with persons outside the prison.
48.  On 29 January and again on 16 September 2003 the applicant complained to the Lublin Regional Prosecutor’s Office about their submissions of 11 December 2002 to the Penitentiary Commission. In particular, he submitted that the allegations concerning his being prone to corrupting prison or court officials had not been supported by any evidence and had served to put pressure on the members of the Penitentiary Commission. In its reply of 31 October 2003, the Lublin Regional Prosecutor’s Office informed the applicant that they had never made the alleged submissions in their communications with the remand centre.
49.  On 1 September 2003 amendments to the Code of Execution of Criminal Sentences (“CECS”) regulating the status of remand prisoners classified as “dangerous” came into effect (see paragraph 82 below in Relevant domestic law).
50.  On 11 September 2003 the Lublin Remand Centre’s Penitentiary Commission prolonged the application of the “dangerous detainee” regime for a further three months. The applicant appealed. On 21 October 2003 the Lublin Regional Court quashed the decision of 11 September 2003 on the ground that it had contained no reasons and remitted the case. It appears that from 24 to 28 October 2003 the applicant was held in an ordinary cell.
51.  On 29 October 2003 the Lublin Remand Centre’s Penitentiary Commission classified the applicant under Article 212a § 1 of the CECS as “posing a serious danger to society or to the security of a remand centre”. On the same day the applicant was readmitted to a cell for dangerous detainees. The Commission found, without giving any specific reasons, that he met the conditions stipulated in Article 212a § 3 of the CECS. In the opinion of the Head of the Security of the Remand Centre of the same date, he advised that the applicant should be preventively shackled (kajdany) when taken out of his cell for a walk, bath, visits, court proceedings, etc. Further, particular precautions should be taken when the applicant was taken to a health establishment. In that case he was to be escorted by three armed prison guards wearing bullet-proof vests. Those recommendations were endorsed by the Penitentiary Commission.
52.  The applicant appealed. He argued, inter alia, that the acts imputed to him between May 1997 and the beginning of 1998, namely acting in an organised criminal group, to which the provisions of the old Criminal Code were applicable, could not be classified as such. Further, the alleged risk that he might attempt to escape was entirely unsubstantiated.
53.  On 4 December 2003 the applicant was transferred back to Chełm Prison.
54.  On 11 December 2003 the Lublin Regional Court quashed the decision of 29 October 2003. It held as follows:
“The reasons given for the decision under appeal are limited to quoting Article 212a § 1 of the Code of Execution of Criminal Sentences. Thus, the decision indicates only its legal basis without providing simultaneously any factual reasons. It may only be assumed that the factual basis for the classification of Paweł Pawlak as “posing a serious danger to society or to the security of a remand centre” was the fact that he had been charged with leading a criminal group which dealt in obtaining goods by deception.
The appellant is right [when claiming] that the charges against him formulated in the bill of indictment do not warrant classifying him as [a detainee] posing a serious danger to society. They are mostly related to acts stipulated in Article 286 § 1 of the Criminal Code, i.e. the ordinary offence of fraud. He was also charged with the offence specified in Article 263 § 2 of the CC; however this charge concerns the unlawful possession of a gas gun.
Paweł Pawlak’s detention on remand, and his consequent isolation from society rendered void any danger posed by him. His detention on remand started on 11.06.2011. Since that moment until the present he has been considered a “dangerous” [detainee].
The examination of his personal file indicates that throughout this period he benefited from many rewards stipulated in the prison rules, mostly in the form of additional visits. He was disciplined only once with a warning for loud banging on the door of his cell, which he justified by the defect of the bell.
In those circumstances, it would be patently contradictory to Article 212a § 4(2) of the Code of Execution of Criminal Sentences to conclude that the appellant posed a danger to the security of the Lublin Remand Centre.
The concerns, referred to in the letter of the Governor of the Lublin Remand Centre of 7 December 2003, that Paweł Pawlak would corrupt prison or administration of justice officers, were not supported by any concrete facts. Accordingly, they are merely hypothetical, and the obligation to place him in conditions ensuring increased protection (Article 212a § 3 of the Code) renders potential attempts of P. Pawlak in this respect more than limited.
For all those reasons the decision under appeal should be quashed.”
55.  On 24 December 2003 the Penitentiary Commission of the Chełm Prison decided to lift the measure. It referred to the grounds invoked in the Regional Court’s decision of 11 December 2003.
56.  On 2 January 2004 the applicant submitted a complaint to the Lublin Regional Inspection of Prison Services (Okręgowy Inspektorat Służby Więziennej). He firstly complained that following the Regional Court’s decision of 11 December 2003 quashing the decision on prolongation of the regime he had been unlawfully held in a cell for dangerous detainees. The court’s session took place at the Chełm Prison and the representative of the prison administration was present at the session. In his view, the court’s decision should have been enforced with immediate effect. Secondly, the applicant complained that he had been held in a cell for dangerous detainees between 3 and 12 December 2002 despite the Regional Court’s decision of 3 December 2002 quashing the earlier decision on prolongation of the regime.
57.  In his reply of 9 August 2004 the Lublin Regional Inspector of Prison Services acknowledged the applicant’s complaint in respect of the period following the court’s decision of 11 December 2003. He noted that following that decision the applicant should have been instantly transferred to an ordinary cell and that there was no need for the Penitentiary Commission to decide on the matter. However, he considered unfounded the applicant’s complaint in respect of the second period.
58.  The applicant submitted a similar complaint to the Lublin Regional Court – Penitentiary Division. In a reply of 5 October 2004 he was informed that following the court’s decision of 11 December 2003 the administration of Chełm Prison had erroneously applied the provisions of the CECS. As a result of that erroneous interpretation the Penitentiary Commission had lifted the imposition of the dangerous detainee regime only on 24 December 2003.
59.  The applicant lodged a complaint with the Lublin Regional Court ‑ Penitentiary Division in respect of the execution of that court’s decision of 3 December 2002 quashing the earlier decision on prolongation of the imposition of the regime. On 31 January 2005 the applicant was informed that following that decision he could no longer be considered a dangerous detainee and should have been transferred to an ordinary cell.
60.  The applicant claimed that during the whole period of the application of the “dangerous detainee” regime he had been held in a solitary cell.
The Government submitted that on the basis of available documents it was impossible to establish whether during his detention in the Radom Remand Centre the applicant was placed in a solitary cell or with other inmates. However, it transpired from the letter of the Deputy Governor of the Radom Remand Centre to the Radom Regional Court – Penitentiary Division of 25 February 2002 that in that establishment the applicant had been placed in a solitary cell at the moment of sending out this letter. In respect of the subsequent period the applicant was placed in a cell designated for two or three inmates with the exception of the period from 24 to 28 October 2003 when he was placed in a cell designated for six prisoners. However, due to the lapse of time there were no data available to establish whether the applicant had shared those cells with other inmates.
61.  The applicant submitted that his cells, including sanitary facilities, had been constantly monitored via a CCTV system.
The Government challenged those assertions. They stated that the cells in two of the establishments where the applicant had been held, namely the Lublin Remand Centre and Chełm Prison, had not been equipped with a CCTV system. Only in one establishment (the Radom Remand Centre) had such a system been in place. However, the sanitary facilities had not been monitored.
62.  The applicant submitted that his mother had been refused permission to visit him between December 2002 and 1 September 2003 because she was to testify as a witness at his trial. His mother had requested permission for a visit every month.
63.  He further submitted that he had only received closed visits from his wife, his daughter and his mother.
64.  On the basis of the applicant’s personal files the Government submitted that over the period from 1 February 2002 to 24 December 2003 he had received numerous visits from his relatives.
65.  The applicant received three visits from his mother, R.P., on the following dates: 22 March and 28 December 2002 and 1 September 2003.
66.  The applicant received one visit from Ms D.G. on 22 February 2002. According to the Government her family relationship with the applicant was not specified.
67.  He received five visits from his daughter, E.P., and his wife M.P. on the following dates: 19 October 2002, 22 February, 17 April, 30 June (on that date together with a certain D.J., a third party) and 29 September 2003.
68.  On 20 October and 6 December 2003 the applicant received two visits from his daughter and D.J.
69.  All visits were conducted in a manner preventing the applicant from having direct contact with a visitor. The duration of each visit was 60 minutes with the exception of the visit of his mother on 1 September 2003, which lasted 90 minutes.
70.  The Government further submitted that the applicant had received further visits on 20 March, 11 May and 12 December 2002. However, it was not possible to establish the identity of the visitors.
71.  On 30 July 2003 the applicant complained to the President of the Lublin District Court that he had been deprived of the possibility to receive visits from his wife, his daughter and his mother. By a letter dated 2 September 2003, the President of the Lublin District Court informed the applicant that a temporary ban on visits had been justified by the need to secure the proper conduct of the proceedings. She referred to the risk of putting pressure via third parties on one of the co-accused, R.P., who had not yet finished giving evidence before the trial court. The judge rapporteur was entitled to take such decision under Articles 207 and 217 § 2 of the CECS, in particular having regard to the applicant’s aggressive behaviour towards R.P. at the hearing held on 11 July 2003. On the same day the judge rapporteur refused to grant the applicant’s wife permission to visit him having regard to the above circumstances.
72.  On 18 September 2003 the applicant complained that he had been deprived of the possibility to receive visits from his mother. By a letter dated 3 October 2003 the President of the Lublin District Court informed the applicant that a refusal to grant him a visit from his mother had been justified by the fact that she was to give evidence as a witness at the trial and thus the need to ensure the proper conduct of the proceedings.